As Facebook privacy suit reaches 25,000 participant target, court is still unsure if it will allow it

The commercial court in Vienna will probably know on Friday if it will accept the case

An Austrian 'class action' lawsuit against Facebook over the company's privacy policies is expected to reach a limit of 25,000 participants on Wednesday. It remains however uncertain if the commercial court in Vienna will accept the case.

"We're at about 22,000 participants," said Europe-v-Facebook front man and main complainant Max Schrems on Wednesday morning European time. He expected to reach a self-set limit of 25,000 participants in the afternoon who will each claim €500 (US$668) in damages, amounting to a total claim of €12.5 million.

The number of participants will be limited because Schrems and his team will have to verify and administer every individual claim, he said, adding that 25,000 participants is enough to make a point. "For the political purpose of the suit it doesn't really matter if there are 40,000 or 25,000 participants," he said, adding that he didn't expect to gather so many participants in such a short time span.

"We thought we were going to get to that number but not within five or six days," he said. When the threshold of 25,000 is reached people can join a waiting list and could be added to the claim later, Schrems said.

Schrems sued Facebook Ireland, which is responsible for processing the data of users outside the U.S. and Canada, over alleged privacy violations.

Facebook users outside the U.S. and Canada were invited to join his suit against the company last Friday. They can sign up via fbclaim.com.

Facebook's privacy policy is invalid under EU law, according to Schrems. The suit also alleges that the company violates privacy laws when it tracks users on third party websites through "Like" buttons, while its alleged support of the U.S. National Security Agency's surveillance program is also part of the case.

Though a U.S.-style class action suit in which people can collectively sue a company isn't possible under Austrian law, Schrems is adamant that the court will allow his case. Under Austrian law, interested parties can assign their claims to a single person. That person can then sue on behalf of the third parties and redistribute any damages awarded, he said.

However, the commercial court in Vienna hasn't decided yet if it will accept the case, a spokesman for the court said. "The responsible judge is currently checking whether the claim is correct and appropriate," he said, adding that a decision might be taken by the end of the week.

There have been other class action-like claim constructions in Austria before but they were of a different kind, the spokesman said. In one of those cases investors who bought shares through banks demanded compensation because they didn't get the return on investment the banks promised, he said.

Most complainants who joined earlier cases came from Austria, the spokesman said. A couple of claims form people outside of the country were also allowed, but those claims were made by people who did business with an Austrian bank, he added.

Moreover, the number of people who joined that case came nowhere close to the 25,000 who are being invited to join the case against Facebook. "There were cases with fifty to sixty complainants and there was a case with circa 300 complainants," he said, adding that 25,000 is a "new dimension" for the court.

Most claims in the Facebook case come from Germany, where over 5,000 people want to join, followed by Austria with about 4,000 people and the Netherlands with about 2,500 participants, according to Europe-v-Facebook. Other countries in the top ten include Finland, Croatia, the U.K., Belgium, France, Serbia and Poland.

The number of people shouldn't be an administrative burden for the court as it is up to Facebook to dispute the evidence, Schrems said. "We probably will not be able to join all 25,000 because there will be a certain amount of people where data is incorrect," he said, adding that most sign-ups looked to be valid so far.

While many people want to join the suit, it has also gathered some criticism. Some people for instance argued that those who don't want Facebook to use their data should just quit the service rather than suing it.

However, Schrems said he sees social networking as the telephone for his generation and added that there is not really a way to get around Facebook. "Facebook has a closed system, it is not like email where you can just choose another provider," Schrems said, adding that other social networks aren't as popular as Facebook.

However, the main problem isn't necessarily Facebook, he said, adding that people who use services from Apple and Google have similar problems.

"If you really are consistently not signing up to a service if you are unhappy with the privacy policies of these companies, you would pretty much have to go back to a landline phone and read the newspaper in the coffee place around the corner. And that really can't be the solution for the modern age," he said.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, open-source and online payment issues for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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